The burden of proof of service of notice lies on the complainant, and the Court must ascertain whether the notice was actually served on the sendee and whether the sendee was responsible for the non-service. The Court also highlighted the need for evidence and cautioned against a mechanical inference of deemed service.

Hema, J.

Notices were sent to the petitioner in both the cases at hand, under S.138(b) of Negotiable Instruments Act. Those were returned with the postal endorsement, “Addressee left India”. Those endorsements are true. He had in fact left India. Admittedly therefore, those were not served on the petitioner, though sent in correct address. Can in such circumstances, those notices be deemed to be served on the petitioner? Can the proceedings initiated against the petitioner under S.138 of Negotiable Instruments Act be quashed? These are the main questions arising in both the cases before me.

2. The petitioner is the accused in both the above cases. Same questions arise in these cases. Hence these cases are disposed of by this common order. The first respondent Crl.M.C.No.9013/2002 and Crl.M.C.No.9017/2002 filed complaints against the petitioner, before the Judicial First Class Magistrate Court-I, Thiruvananthapuram under S.138 of the Negotiable Instruments Act, after complying with the legal formalities under the Negotiable Instruments Act. The Court took cognizance of offence under S.138 of the Negotiable Instruments Act and those cases were taken on file as C.C.No.105/2001 and C.C.No.119/2001.

3. Admittedly, notices issued to the petitioner under S.138 (b) of the N.I. Act were returned in both the cases with the endorsement ‘Addressee left India’. Copies of postal enforcements are also produced along with the complaint. The accused produced in these proceedings, copy of passport showing that he was not available in India during relevant time. Learned counsel appearing for the petitioner therefore contended that there is clear proof for the fact that there was no service of notice and also that the petitioner was abroad at the relevant time. Therefore, it is contended that there is no legal notices in the above cases and hence chances of a conviction are bleak. It is also argued that before issuance of summons, the lower Court ought to have considered al these aspects and se whether there are materials on record to disclose ingredients of offence under S.138 of the N.I,. Act, as held in the decision reported in 2001 CCR 260 (SC). The petitioner on these grounds seeks to quash the proceedings initiated by the lower Court against him on the basis of the above complaints, to prevent abuse of process of Court.

4. Learned Counsel appearing for the complainant/first respondent however maintained the strong stand that the proceedings cannot be quashed on any of the grounds stated. It was argued that as per settled position of law, it is sufficient if the notice is issued in the correct address of the drawer of the cheque and notice has to be deemed to be served on the sendee whether it is actually served or not. As per postal records produced along with the complaints, it is proved that notices were sent to the petitioner in correct address and the petitioner himself has no case that the address shown was wrong. Therefore, in the light of the decision reported in Mohammed Ashraf v. Sharafuddin, 2003 (3) KLT SN 77, it was argued that notice can be deemed to be served on the petitioner and he cannot any longer contend that there is no valid notice under the Act. It was also urged whether the notice is actually served or not and whether the petitioner was abroad etc. do not germane for consideration in this case, in the light of the dictum laid down in the above decision.

5. The relevant portion from the above decision in Mohammed Ashraf v. Sharafuddin, 2003 (3) KLT SN 77, can be extracted as follows:

“It is not the law that notice under S.138 of the N.I. Act must be served on the indictee. Law only obliges the payee to demand payment “by giving a notice.” It is by now trite that a notice issued in the correct address of the drawer of the cheque by pre-paid post whether served or not is sufficient notice for the purpose of S.138 of the N.I. Act.”

6. It is true that as held on the above decision, notice issued under S.138 (b) of Neg